SECURITIES PURCHASE AGREEMENT
Exhibit
10.2
This
Securities Purchase Agreement (this “Agreement”) is dated
as of December 8, 2010, between Park National Corporation, an Ohio corporation
(the “Company”), and each
purchaser identified on the signature pages hereto (each, including its
successors and assigns, a “Purchaser” and
collectively, the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to
an effective registration statement under the Securities Act of 1933, as amended
(the “Securities
Act”), the Company desires to issue and sell to each Purchaser, and each
Purchaser, severally and not jointly, desires to purchase from the Company,
securities of the Company as more fully described in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and each Purchaser agree as
follows:
ARTICLE
I.
DEFINITIONS
1.1
Definitions. In addition to the terms defined elsewhere in
this Agreement, for all purposes of this Agreement, the following terms have the
meanings set forth in this Section 1.1:
“Affiliate” means any
Person that, directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person as such terms are
used in and construed under Rule 405 under the Securities Act.
“Board of Directors”
means the board of directors of the Company.
“Business Day” means
any day except any Saturday, any Sunday, any day which is a federal legal
holiday in the United States or any day on which banking institutions in the
State of Ohio, the State of Kentucky, the State of Alabama, the State of Florida
or the State of New York are authorized or required by law or other governmental
action to close.
“Closing” means the
closing of the purchase and sale of the Securities pursuant to Section
2.1.
“Closing Date” means
the Trading Day on which all of the Transaction Documents have been executed and
delivered by the applicable parties thereto, and all conditions precedent to (i)
the Purchasers’ obligations to pay the Subscription Amount and (ii) the
Company’s obligations to deliver the Securities, in each case, have been
satisfied or waived.
“Commission” means the
United States Securities and Exchange Commission.
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“Common Shares” means
the common shares of the Company, no par value, and any other class of
securities into which such securities may hereafter be reclassified or
changed.
“Common Share
Equivalents” means any securities of the Company or the Subsidiaries
which would entitle the holder thereof to acquire at any time Common Shares,
including, without limitation, any debt, preferred shares, rights, options,
warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common
Shares.
“Company Counsel”
means Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, with offices located at 00 Xxxx Xxx
Xxxxxx, Xxxxxxxx, Xxxx 00000.
“Disclosure Schedules”
means the Disclosure Schedules of the Company delivered concurrently
herewith.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Exempt Issuance”
means the issuance of (a) Common Shares or options to employees, officers
or directors of
the Company pursuant to any 401(k), employee stock ownership, stock or option
plan duly adopted for such purpose, by a majority of the non-employee members of
the Board of Directors, by a majority of the members of a committee of
non-employee directors established for such purpose or otherwise pursuant to the
terms of such plan, (b) Common Shares to the Park National Corporation
Defined Benefit Pension Plan, (c) securities upon the exercise or exchange
of or conversion of any Securities issued hereunder and/or other securities
exercisable or exchangeable for or convertible into Common Shares issued and
outstanding on the date of this Agreement (including, without limitation, the
Warrant to Purchase Common Stock issued by the Company to the United States
Department of the Treasury on December 23, 2008), provided that such
securities have not been amended since the date of this Agreement to increase
the number of such securities or to decrease the exercise price, exchange price
or conversion price of such securities other than pursuant to the terms of such
securities, (d) securities issued pursuant to stock splits, stock dividends
or distributions, recapitalizations and similar events affecting the Common
Shares and (e) securities issued pursuant to acquisitions or strategic
transactions approved by a majority of the disinterested directors of the
Company, provided that any such issuance shall only be to a Person (or to the
equityholders of a Person) which is, itself or through its subsidiaries, an
operating company or an asset in a business synergistic with the business of the
Company and shall provide to the Company additional benefits in addition to the
investment of funds, but shall not include a transaction in which the Company is
issuing securities primarily for the purpose of raising capital or to an entity
whose primary business is investing in securities. “Exempt Issuance” also
includes the acquisition of Common Shares under the terms of the Park National
Corporation Dividend Reinvestment Plan (the “Park DRIP”) for the
accounts of participants in the Park DRIP, which Common Shares will be purchased
on the open market at current market prices by or at the direction of a
registered broker-dealer acting as an independent stock purchasing agent (the
“Park DRIP Purchasing
Agent”) for the Park DRIP.
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“Liens” means a lien,
charge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction, other than restrictions imposed by securities
laws.
“Per Share Exercise
Price” equals $76.41, (being 110% of the Per
Share Purchase Price), subject to adjustment as set forth in the
Warrants.
“Per Share Purchase
Price” equals $69.46, subject to adjustment
for reverse and forward stock splits, stock dividends, stock combinations and
other similar transactions of the Common Shares that occur after the date of
this Agreement.
“Person” means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Proceeding” means an
action, claim, suit, investigation or proceeding (including, without limitation,
an informal investigation or partial proceeding, such as a deposition), whether
commenced or threatened.
“Prospectus” means the
base prospectus filed with the Registration Statement.
“Prospectus
Supplement” means the supplement to the Prospectus complying with Rule
424(b) under the Securities Act that is filed with the Commission and delivered
by the Company to each Purchaser prior to or at the Closing.
“Registration
Statement” means the effective registration statement, as amended, filed
with the Commission (File No. 333-159454) which registers the sale of the Common
Shares, the Warrants and the Warrant Shares to the Purchasers.
“Rule 144” means Rule
144 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
purpose and effect as such Rule.
“Rule 424” means Rule
424 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
purpose and effect as such Rule.
“Securities” means the
Common Shares, the Warrants and the Warrant Shares.
“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
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“Series A Warrants”
means, collectively, the Series A Common Share Warrants delivered to the
Purchasers at the Closing in accordance with Section 2.2(a) hereof, which shall
be exercisable commencing on the Closing Date and have a term of exercise equal
to six months from the Closing Date, in the form of Exhibit A attached
hereto.
“Series B Warrants”
means, collectively, the Series B Common Share Warrants delivered to the
Purchasers at the Closing in accordance with Section 2.2(a) hereof, which shall
be exercisable commencing on the Closing Date and have a term of exercise equal
to one year from the Closing Date, in the form of Exhibit A attached
hereto.
“Short Sales” means
all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange
Act (but shall not be deemed to include the location and/or reservation of
borrowable Common Shares).
“Subscription Amount”
means, as to each Purchaser, the aggregate amount to be paid for Common Shares
and Warrants purchased hereunder as specified below such Purchaser’s name on the
signature page of this Agreement and next to the heading “Subscription Amount,”
in United States dollars and in immediately available funds.
“Subsidiary” means any
subsidiary of the Company as set forth in the SEC Reports, and shall, where
applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading Day” means a
day on which the Trading Market is open for trading.
“Trading Market” means
NYSE Amex (or any successors).
“Transaction
Documents” means this Agreement, the Warrants and any other documents or
agreements executed in connection with the transactions contemplated
hereunder.
“Transfer Agent” means
The Park National Bank (through the First-Xxxx National Division),
the current transfer agent of the Company, with a mailing address of Xxx Xxxxx
Xxxx Xxxxxx, Xxxxx Xxxxxx, Xxxx 00000, and a facsimile number of (000) 000-0000,
and any successor transfer agent of the Company.
“Warrants” means the
Series A Warrants and the Series B Warrants, collectively.
“Warrant Shares” means
the Common Shares issuable upon exercise of the Warrants.
“WS” means Xxxxxxxxx
Xxxxx LLP with offices located at 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx,
Xxx Xxxx 00000-0000.
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ARTICLE
II.
PURCHASE
AND SALE
2.1 Closing. On
the Closing Date, upon the terms and subject to the conditions set forth herein,
substantially concurrent with the execution and delivery of this Agreement by
the parties hereto, the Company agrees to sell, and the Purchasers, severally
and not jointly, agree to purchase, (a) an aggregate of 71,984 Common Shares and
(b) Warrants to purchase such number of additional Common Shares as determined
in accordance with Section 2.2(a), as to each Purchaser for such Subscription
Amount as is specified below such Purchaser’s name on the signature page
hereto. Each Purchaser shall deliver to the Company, via wire
transfer, immediately available funds equal to such Purchaser’s Subscription
Amount as set forth on the signature page hereto executed by such Purchaser and
the Company shall deliver to each Purchaser its respective Common Shares and
Warrants as determined pursuant to Section 2.2(a), and the Company and each
Purchaser shall deliver the other items set forth in Section 2.2 in each case as
a deliverable at the Closing. Upon satisfaction or waiver of the
covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall
occur at the offices of WS or such other location as the parties shall mutually
agree.
2.2 Deliveries.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to be delivered
to each Purchaser the following:
(i) this
Agreement duly executed by the Company;
(ii) a
legal opinion of Company Counsel, in form and substance reasonably satisfactory
to Xxxxxx & Xxxxxxx, LLC, the placement agent;
(iii) a
copy of the irrevocable instructions to the Transfer Agent instructing the
Transfer Agent to deliver via The Depository Trust Company Deposit Withdrawal
Agent Commission (“DWAC”) System that
number of Common Shares equal to such Purchaser’s Subscription Amount divided by
the Per Share Purchase Price, registered in the name of such
Purchaser;
(iv) a
Series A Warrant registered in the name of such Purchaser to purchase up to a
number of Common Shares equal to 50% of the Common Shares issuable to the
Purchaser on the Closing Date with an exercise price equal to the Per Share
Exercise Price (such Warrant certificate may be delivered within three Trading
Days of the Closing Date);
(v) a
Series B Warrant registered in the name of such Purchaser to purchase up to a
number of Common Shares equal to 50% of the Common Shares issuable to the
Purchaser on the Closing Date with an exercise price equal to the Per Share
Exercise Price (such Warrant certificate may be delivered within three Trading
Days of the Closing Date); and
(vi) the
Prospectus and Prospectus Supplement (which may be delivered in accordance with
Rule 172 under the Securities Act).
(b) On
or prior to the Closing Date, each Purchaser shall deliver or cause to be
delivered to the Company the following:
(i) this
Agreement duly executed by such Purchaser; and
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(ii) such
Purchaser’s Subscription Amount by wire transfer to the account as specified in
writing by the Company.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(i) the
accuracy in all material respects when made and on the Closing Date (unless as
of a specific date therein) of the representations and warranties of the
Purchasers contained herein;
(ii) all
obligations, covenants and agreements of each Purchaser required to be performed
at or prior to the Closing Date shall have been performed in all material
respects; and
(iii) the
delivery by each Purchaser of the items set forth in Section 2.2(b) of this
Agreement.
(b)
The respective obligations of the Purchasers hereunder in connection with the
Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects when made and on the Closing Date (unless as
of a specific date therein) of the representations and warranties of the Company
contained herein;
(ii) all
obligations, covenants and agreements of the Company required to be performed at
or prior to the Closing Date shall have been performed in all material respects;
and
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this
Agreement.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1 Representations and
Warranties of the Company. Except as set forth in the
Disclosure Schedules, which Disclosure Schedules shall be deemed a part hereof
and shall qualify any representation otherwise made herein to the extent of the
disclosure contained in the corresponding section of the Disclosure Schedules,
the Company hereby makes the following representations and warranties to each
Purchaser:
(a) Subsidiaries. All
of the direct and indirect significant Subsidiaries (as defined in Rule 1-02(w)
of Regulation S-X) of the Company are set forth in the SEC
Reports. Except as set forth in the SEC Reports, the Company owns,
directly or indirectly, all of the capital stock or other equity interests of
each Subsidiary free and clear of any Liens, and, except as set forth in the SEC
Reports, all of the issued and outstanding shares of capital stock of each
Subsidiary, where applicable, are validly issued and are fully paid,
non-assessable and free of preemptive and similar rights to subscribe for or
purchase securities.
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(b) Organization and
Qualification. The Company and each of the Subsidiaries is an
entity duly incorporated or otherwise organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or organization
(as applicable), with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation or
default of any of the provisions of its respective certificate or articles of
incorporation, bylaws, regulations or other organizational or charter
documents. Each of the Company and the Subsidiaries is duly qualified
to conduct business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, would not
reasonably be expected to result in: (i) a material adverse effect on the
legality, validity or enforceability of any Transaction Document, (ii) a
material adverse effect on the results of operations, assets, business or
condition (financial or otherwise) of the Company and the Subsidiaries, taken as
a whole, or (iii) a material adverse effect on the Company’s ability to perform
in any material respect on a timely basis its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no Proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such
power and authority or qualification.
(c) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by each
of the Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of each of the
Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary action on the part of the Company and no further action is required by
the Company, the Board of Directors or the Company’s shareholders in connection
therewith other than in connection with the Required Approvals. Each
Transaction Document to which the Company is a party has been (or upon delivery
will have been) duly executed by the Company and, when delivered in accordance
with the terms hereof and thereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally; (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies; and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
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(d) No
Conflicts. The execution and delivery by the Company of the
Transaction Documents to which it is a party and the performance by the Company
of its obligations under the Transaction Documents to which it is a party, the
issuance and sale of the Securities by the Company and the consummation by the
Company of the transactions contemplated by this Agreement and the Transaction
Documents to which the Company is a party do not and will not (i) conflict with
or violate any provision of the Company’s or any Subsidiary’s certificate or
articles of incorporation, bylaws, regulations or other organizational or
charter documents, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument (evidencing a Company or Subsidiary debt or
otherwise) or other understanding to which the Company or any Subsidiary is a
party or by which any property or asset of the Company or any Subsidiary is
bound or affected or result in the creation of any Lien upon any of the
properties or assets of the Company or any Subsidiary, or (iii) subject to the
Required Approvals, conflict with or result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other restriction of any
court or governmental authority to which the Company or a Subsidiary is subject
(including federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected; except in
the case of each of clauses (ii) and (iii), such as would not have or reasonably
be expected to result in a Material Adverse Effect.
(e) Filings, Consents and
Approvals. The Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Company of the Transaction Documents, other
than: (i) the filings required pursuant to Section 4.2 of this Agreement; (ii)
the filing with the Commission of the Prospectus Supplement; (iii)
application(s) to the Trading Market for the listing of the Securities for
trading thereon in the time and manner required thereby; (iv) such filings as
are required to be made under applicable state securities laws; and (v) such
consents, waivers, authorizations or orders, or such filings, as have been
obtained or made (collectively, the “Required
Approvals”).
(f) Issuance of the Securities;
Registration. The Common Shares and the Warrants are duly
authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the
Company. The Warrant Shares, when issued in accordance with the terms
of the Warrants, will be validly issued, fully paid and nonassessable, free and
clear of all Liens imposed by the Company. The Company has reserved
from its duly authorized capital stock the maximum number of Common Shares
issuable pursuant to this Agreement and the Warrants. The
Registration Statement was declared effective under the Securities Act on May
22, 2009 (the “Effective Date”) and
no stop order preventing or suspending the effectiveness of the Registration
Statement or suspending or preventing the use of the Prospectus has been issued
by the Commission and no proceedings for that purpose have been instituted or,
to the actual knowledge of the Company, are threatened by the
Commission. The Company, if required by the rules and regulations of
the Commission, proposes to file the Prospectus Supplement with the Commission
pursuant to Rule 424(b). At the time the Registration Statement and
any amendments thereto became effective, at the date of this Agreement and at
the Closing Date, the Registration Statement and any amendments thereto
conformed and will conform in all material respects to the requirements of the
Securities Act and did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; and the Prospectus
and any amendments or supplements thereto, at time the Prospectus or any
amendment or supplement thereto was issued and at the Closing Date, conformed
and will conform in all material respects to the requirements of the Securities
Act and did not and will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
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(g) Capitalization. The
capitalization of the Company is as set forth in the Company’s most recently
filed Form 10-Q. As of the date of the Agreement, the Company has not
issued any capital stock since it filed its most recently filed periodic report
under the Exchange Act, other than pursuant to the exercise of employee stock
options under the Company’s stock option plans and the issuance of Common Shares
pursuant to the Company’s Stock Plan for Non-Employee Directors of Park National
Corporation and Subsidiaries. In addition, Common Shares are to be
acquired under the terms of the Park DRIP for the accounts of participants in
the Park DRIP and under the terms of the Park National Corporation Employees
Stock Ownership Plan (the “Park KSOP”) for the accounts of participants in the
Park KSOP, which Common Shares will be purchased on the open market at current
market prices by or at the direction of a registered broker-dealer acting as an
independent stock purchasing agent for the Park DRIP or the Park KSOP, as
appropriate. No Person has any right of first refusal, preemptive
right, right of participation, or any similar right to participate in the
transactions contemplated by the Transaction Documents. Except as a
result of the purchase and sale of the Securities, and except as disclosed in
the SEC Reports, pursuant to equity compensation plans or agreements filed as
exhibits to the SEC Reports or pursuant to the Park DRIP or the Park KSOP, there
are no outstanding options, warrants, script rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities, rights or
obligations convertible into or exercisable or exchangeable for, or giving any
Person any right to subscribe for or acquire, any Common Shares, or contracts,
commitments, understandings or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional Common Shares or Common
Share Equivalents, in each case issued by the Company. The issuance
and sale of the Securities will not obligate the Company to issue Common Shares
or other securities to any Person (other than the Purchasers) and will not
result in a right of any holder of Company securities to adjust the exercise,
conversion, exchange or reset price under any of such securities. All of the
outstanding shares of capital stock of the Company are validly issued, fully
paid and nonassessable, have been issued in compliance with all federal and
state securities laws, and none of such outstanding shares was issued in
violation of any preemptive rights or similar rights to subscribe for or
purchase securities. No further approval or authorization of any
shareholder, the Board of Directors or others is required for the issuance and
sale of the Securities. There are no shareholders agreements, voting
agreements or other similar agreements with respect to the Company’s capital
stock to which the Company is a party or, to the actual knowledge of the
Company, between or among any of the Company’s shareholders.
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(h) SEC Reports; Financial
Statements. The Company has complied in all material respects
with requirements to file all reports, schedules, forms, statements and other
documents required to be filed by the Company under the Securities Act and the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two
years preceding the date hereof (or such shorter period as the Company was
required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein,
together with the Prospectus and the Prospectus Supplement, being collectively
referred to herein as the “SEC Reports”) on a
timely basis or has received a valid extension of such time of filing and has
filed any such SEC Reports prior to the expiration of any such
extension. As of their respective dates, the SEC Reports complied in
all material respects with the requirements of the Securities Act or the
Exchange Act, as applicable, and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the
SEC Reports comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements
have been prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis during the periods involved
(“GAAP”),
except as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material respects the
financial position of the Company and its consolidated Subsidiaries as of and
for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
(i) Material Changes;
Undisclosed Events, Liabilities or Developments. Since the
date of the latest audited financial statements included within the SEC Reports,
except as specifically disclosed in a subsequent SEC Report filed prior to the
date hereof, (i) there has been no event, occurrence or development that has had
or that would reasonably be expected to result in a Material Adverse Effect,
(ii) the Company has not incurred any material liabilities (contingent or
otherwise) other than (A) trade payables and accrued expenses incurred in the
ordinary course of business consistent with past practice and (B) liabilities
not required to be reflected in the Company’s financial statements pursuant to
GAAP or required to be disclosed in filings made with the Commission, (iii) the
Company has not materially altered its method of accounting, (iv) the Company
has not declared or made any dividend or distribution of cash or other property
to its shareholders or purchased, redeemed or made any agreements to purchase or
redeem any shares of its capital stock and (v) the Company has not issued any
equity securities to any officer, director or Affiliate, except pursuant to
existing Company stock option or compensation plans or the Park
DRIP. Except for the issuance of the Securities contemplated by this
Agreement or as set forth in the SEC Reports, no event, liability or development
has occurred or exists with respect to the Company or its Subsidiaries or their
respective businesses, properties, operations or financial condition, that would
be required to be disclosed by the Company under applicable securities laws at
the time this representation is made that has not been publicly disclosed prior
to the date that this representation is made.
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(j) Compliance. Neither
the Company nor any Subsidiary: (i) is in default under or in violation of (and
no event has occurred that has not been waived that, with notice or lapse of
time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any judgment, decree or
order of any court, arbitrator or governmental body or (iii) is or has been in
violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local
laws applicable to its business and all such laws that affect the environment,
except in each case as would not reasonably be expected to result in a Material
Adverse Effect.
(k) Certain
Fees. Except as set forth in the Prospectus Supplement, no
brokerage or finder’s fees or commissions are or will be payable by the Company
to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by the Transaction Documents. The Purchasers shall have
no obligation with respect to any fees or with respect to any claims made by or
on behalf of other Persons for fees of a type contemplated in this Section that
may be due from the Company in connection with the transactions contemplated by
the Transaction Documents.
(l)
Investment Company.
The Company is not, and is not an Affiliate of, and immediately after receipt of
payment for the Securities, will not be or be an Affiliate of, an “investment
company” within the meaning of the Investment Company Act of 1940, as
amended.
(m) Listing and Maintenance
Requirements. The Common Shares are registered pursuant to
Section 12(b) of the Exchange Act, and the Company has taken no action designed
to, or which to its actual knowledge is likely to have the effect of,
terminating the registration of the Common Shares under the Exchange Act nor has
the Company received any notification that the Commission is contemplating
terminating such registration. The Company has not, in the 12 months
preceding the date hereof, received notice from the Trading Market that the
Company is not in compliance with the material listing or maintenance
requirements of the Trading Market. The Company is in compliance in
all material respects with all such listing and maintenance
requirements.
(n) Application of Takeover
Protections. The Company and the Board of Directors have taken
all necessary action, if any, in order to render inapplicable any control share
acquisition, business combination, poison pill (including any distribution under
a rights agreement) or other similar anti-takeover provision under the Company’s
Articles of Incorporation (or similar charter documents) or the laws of its
state of incorporation that is or could become applicable to the Purchasers
solely as a result of the Company’s issuance of the Securities and the
Purchasers’ ownership of the Securities.
11
(o) Disclosure. Except
with respect to the material terms and conditions of the transactions
contemplated by the Transaction Documents, the Company confirms that neither it
nor any other Person acting on its behalf has provided any of the Purchasers or
their agents or counsel with any information that the Company believes
constitutes or might constitute material, non-public information which is not
otherwise disclosed in the Prospectus Supplement. The Company
understands and confirms that the Purchasers will rely on the foregoing
representation in effecting transactions in securities of the
Company.
(p) No Integrated
Offering. Assuming the accuracy of the Purchasers’ representations and
warranties set forth in Section 3.2 of this Agreement, neither the Company, nor
any of its Affiliates, nor any Person acting on its or their behalf has,
directly or indirectly, made any offers or sales of any security or solicited
any offers to buy any security, under circumstances that would cause this
offering of the Securities to be integrated with prior offerings by the Company
for purposes of any applicable shareholder approval provisions of the Trading
Market.
(q) Acknowledgment Regarding
Purchasers’ Purchase of Securities. The Company acknowledges
and agrees that each of the Purchasers is acting solely in the capacity of an
arm’s length purchaser with respect to the Transaction Documents and the
transactions contemplated thereby. The Company further acknowledges
that no Purchaser is acting as a financial advisor or fiduciary of the Company
(or in any similar capacity) with respect to the Transaction Documents and the
transactions contemplated thereby and any advice given by any Purchaser or any
of their respective representatives or agents in connection with the Transaction
Documents and the transactions contemplated thereby is merely incidental to the
Purchasers’ purchase of the Securities. The Company further
represents to each Purchaser that the Company’s decision to enter into this
Agreement and the other Transaction Documents has been based solely on the
independent evaluation of the transactions contemplated hereby by the Company
and its representatives.
(r) Acknowledgement Regarding
Purchaser’s Trading Activity. Anything in this Agreement or
elsewhere herein to the contrary notwithstanding (except for Sections 3.2(g) and
4.12 hereof), it is understood and acknowledged by the Company that: (i) none of
the Purchasers have been asked by the Company to agree, nor has any Purchaser
agreed, to desist from purchasing or selling, long and/or short, securities of
the Company, or “derivative” securities based on securities issued by the
Company or to hold the Securities for any specified term; (ii) past or future
open market or other transactions by any Purchaser, specifically including,
without limitation, Short Sales or “derivative” transactions, before or after
the Closing, may negatively impact the market price of the Company’s
publicly-traded securities; (iii) any Purchaser, and counter-parties in
“derivative” transactions to which any such Purchaser is a party, directly or
indirectly, presently may have a “short” position in the Common Shares; and (iv)
each Purchaser shall not be deemed to have any affiliation with or control over
any arm’s length counter-party in any “derivative” transaction. The
Company further understands and acknowledges that (y) one or more Purchasers may
engage in hedging activities at various times during the period that the
Securities are outstanding, including, without limitation, during the periods
that the value of the Warrant Shares deliverable with respect to Securities are
being determined, and (z) such hedging activities (if any) could reduce the
value of the existing shareholders’ equity interests in the Company at and after
the time that the hedging activities are being conducted. The Company
acknowledges that such aforementioned hedging activities do not constitute a
breach of any of the Transaction Documents.
12
(s) Regulation M
Compliance. The Company has not, and to its actual knowledge no one
acting on its behalf has, (i) taken, directly or indirectly, any action designed
to cause or to result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of the
Securities, (ii) sold, bid for, purchased, or paid any compensation for
soliciting purchases of, any of the Securities (other than to the placement
agent for the placement of the Securities), or (iii) paid or agreed to pay to
any Person any compensation for soliciting another to purchase any other
securities of the Company, other than, in the case of clauses (ii) and (iii),
compensation paid to the Company’s placement agent in connection with the
placement of the Securities and as disclosed in the SEC Reports.
Each
Purchaser acknowledges and agrees that the Company does not make and has not
made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Section
3.1.
3.2 Representations and
Warranties of the Purchasers. Each Purchaser, for itself and
for no other Purchaser, hereby represents and warrants as of the date hereof and
as of the Closing Date to the Company as follows (unless as of a specific date
therein):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with full right, corporate, partnership or
limited liability company power and authority to enter into and to consummate
the transactions contemplated by this Agreement and the other Transaction
Documents to which such Purchaser is a party and otherwise to carry out its
obligations hereunder and thereunder. The execution and delivery of this
Agreement and performance by such Purchaser of the transactions contemplated by
this Agreement have been duly authorized by all necessary corporate,
partnership, limited liability company or similar action, as applicable, on the
part of such Purchaser. Each Transaction Document to which it is a
party has been duly executed by such Purchaser, and when delivered by such
Purchaser in accordance with the terms hereof, will constitute the valid and
legally binding obligation of such Purchaser, enforceable against it in
accordance with its terms, except: (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
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(b) No
Conflicts. The execution, delivery and performance by such
Purchaser of the Transaction Documents to which such Purchaser is a party and
the consummation by it of the transactions contemplated hereby and thereby do
not and will not (i) conflict with or violate any provision of the Purchaser’s
certificate or articles of incorporation, bylaws or other organizational or
charter documents, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument (evidencing a Purchaser debt or otherwise) or
other understanding to which such Purchaser is a party or by which any property
or asset of such Purchaser is bound or affected, or result in the creation of
any Lien upon any of the properties or assets of such Purchaser, or
(iii) conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Purchaser is subject (including federal and
state securities laws and regulations), or by which any property or asset of the
Purchaser is bound or affected, except in the case of each of clauses (ii) and
(iii), such as would not reasonably be expected to have a material adverse
effect on such Purchaser’s ability to perform in any material respect its
obligations under any Transaction Documents to which such Purchaser is a
party.
(c) Filings, Consents and
Approvals. Neither such Purchaser nor any of its Affiliates or
related companies is required to obtain any consent, waiver, authorization,
approval or order of, give any notice to, or make any filing or registration
with, any court or other federal, state, local or other governmental authority
or other Person (including, without limitation, any approval, notice and/or
filing with federal or state bank regulatory authorities under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976, as amended, or otherwise)
in connection with the execution, delivery and performance by such Purchaser of
the Transaction Documents, other than, to the extent such Purchaser’s beneficial
ownership of Common Shares (determined in accordance with the Exchange Act)
after giving effect to the purchase and sale to all Purchasers contemplated
hereby, would exceed 5%, the filing with the Commission of a Schedule 13G with
respect to its purchase of Securities hereunder.
(d) Independent Investment
Decision. Except as noted on the signature page hereto, such
Purchaser (i) to its knowledge, is not affiliated with any other Purchaser,
investor or proposed investor in the Company, (ii) reached its decision to
invest in the Company independently from each other Purchaser, investor or
proposed investor in the Company, and (iii) has entered into no agreements with
the other Purchasers, investors or proposed investors in the Company for the
purpose of controlling the Company.
(e) Own
Account. Such Purchaser is acquiring the Securities as
principal for its own account and not with a view to or for distributing or
reselling such Securities or any part thereof in violation of the Securities Act
or any applicable state securities law, has no present intention of distributing
any of such Securities in violation of the Securities Act or any applicable
state securities law and has no direct or indirect arrangement or understandings
with any other persons to distribute or regarding the distribution of such
Securities in violation of the Securities Act or any applicable state securities
law (this representation and warranty not limiting such Purchaser’s right to
sell the Securities in compliance with applicable federal and state securities
laws). Such Purchaser is acquiring the Securities hereunder in the
ordinary course of its business, solely for the purpose of passive investment,
and has no present or, to its present knowledge, any future, plan or intent to
control the Company, to influence the management or Board of Directors or to
take any other action that would require such Purchaser to file a Schedule 13D
with respect to any securities of the Company.
14
(f) Purchaser
Status. At the time such Purchaser was offered the Securities,
it was, and as of the date hereof it is, and on each date on which it exercises
any Warrants, it will be either: (i) an “accredited investor” as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a
“qualified institutional buyer” as defined in Rule 144A(a) under the Securities
Act. Such Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act.
(g) Experience of Such
Purchaser. Such Purchaser, either alone or together with its
representatives, has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and risks of
the prospective investment in the Securities, and has so evaluated the merits
and risks of such investment. Such Purchaser is able to bear the
economic risk of an investment in the Securities and, at the present time, is
able to afford a complete loss of such investment.
(h) Information. Such
Purchaser and its advisors, if any, have been furnished with all materials
relating to the business, financial condition and results of operations of the
Company, and materials relating to the offer and sale of the Securities, that
have been requested by the Purchaser or its advisors, if any. The
Purchaser acknowledges and understands that its investment in the Securities
involves a significant degree of risk.
(i) Certain Transactions and
Confidentiality. Other than consummating the transactions
contemplated hereunder, such Purchaser has not, nor has any Person acting on
behalf of or pursuant to any understanding with such Purchaser, directly or
indirectly executed any purchases or sales, including Short Sales, of the
securities of the Company during the period commencing as of the time that such
Purchaser first became aware of the proposed transactions contemplated hereunder
and ending immediately prior to the execution hereof. Notwithstanding
the foregoing, in the case of a Purchaser that is a multi-managed investment
vehicle whereby separate portfolio managers manage separate portions of such
Purchaser’s assets and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other portions of
such Purchaser’s assets, the representation set forth above shall only apply
with respect to the portion of assets managed by the portfolio manager that made
the investment decision to purchase the Securities covered by this
Agreement. Other than to other Persons party to this Agreement, such
Purchaser has maintained the confidentiality of all disclosures made to it in
connection with this transaction (including the existence and terms of this
transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing
contained herein shall constitute a representation or warranty, or preclude any
actions, with respect to the identification of the availability of, or securing
of, available Common Shares to borrow in order to effect Short Sales or similar
transactions in the future.
15
The
Company acknowledges and agrees that each Purchaser does not make or has not
made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Section
3.2.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1 Warrant
Shares. If all or any portion of a Warrant is exercised at a
time when there is an effective registration statement to cover the issuance of
the Warrant Shares or if the Warrant is exercised via cashless exercise,
the Warrant Shares issued pursuant to any such exercise shall be issued free of
all legends. If at any time following the date hereof the
Registration Statement (or any subsequent registration statement registering the
sale or resale of the Warrant Shares) is not effective or is not otherwise
available for the sale or resale of the Warrant Shares, the Company shall
immediately notify the holders of the Warrants in writing that such registration
statement is not then effective and thereafter shall promptly notify such
holders when the registration statement is effective again and available for the
sale or resale of the Warrant Shares (it being understood and agreed that the
foregoing shall not limit the ability of the Company to issue, or any Purchaser
to sell, any of the Warrant Shares in compliance with applicable federal and
state securities laws). The Company shall use reasonable best efforts
to keep a registration statement (including the Registration Statement)
registering the issuance or resale of the Warrant Shares effective during the
term of the Warrants. Additionally, until the Warrants have expired
(or have earlier been exercised), the Company covenants to use its commercially
reasonable efforts to timely file (or obtain extensions in respect thereof and
file within the applicable grace period) all reports required to be filed by the
Company after the date hereof pursuant to the Exchange Act.
4.2 Securities Laws Disclosure;
Publicity. The Company shall, by 9:15 a.m. (New York City
time) on the Trading Day immediately following the date hereof issue a
press release disclosing the material terms of the transactions contemplated
hereby, and file a Current Report on Form 8-K disclosing the material terms of
the transactions contemplated hereby and including the Transaction Documents as
exhibits thereto. From and after the filing of such Current Report on
Form 8-K, the Company shall have publicly disclosed all material, non-public
information delivered to any of the Purchasers by the Company or any of its
Subsidiaries, or any of their respective officers, directors, employees or
agents in connection with the transactions contemplated by the Transaction
Documents. The Company and each Purchaser shall consult with each
other in issuing any press releases with respect to the transactions
contemplated hereby, and neither the Company nor any Purchaser shall issue any
press release nor otherwise make any such public statement without the prior
consent of the Company, with respect to any press release of any Purchaser, or
without the prior consent of each Purchaser, with respect to any press release
of the Company, which consent shall not unreasonably be withheld or delayed,
except if such disclosure is required by law, in which case the disclosing party
shall promptly provide the other party with prior notice of such public
statement or communication. Notwithstanding the foregoing, the Company shall not
publicly disclose the name of any Purchaser, or include the name of any
Purchaser in any filing with the Commission or any regulatory agency or Trading
Market, without the prior written consent of such Purchaser, except (a) as
required by federal securities law in connection with the filing of final
Transaction Documents (including signature pages thereto) with the Commission
and (b) to the extent such disclosure is required by law, by Trading Market
rules or regulations or pursuant to an investigation conducted by the Financial
Industry Regulatory Authority, in which case the Company shall, to the extent
permissible and practicable, provide the Purchasers with prior notice of such
disclosure permitted under this clause (b).
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4.3 Non-Public
Information. Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction Documents, the
Company covenants and agrees that neither it, nor any other Person acting on its
behalf will provide any Purchaser or its agents or counsel with any information
that the Company believes constitutes material non-public information, unless
prior thereto such Purchaser shall have executed a written agreement with the
Company regarding the confidentiality and use of such
information. The Company understands and confirms that each Purchaser
shall be relying on the foregoing covenant in effecting transactions in
securities of the Company.
4.4 Use of
Proceeds. Except as set forth in the Prospectus Supplement,
the Company shall use the net proceeds from the sale of the Securities hereunder
for working capital purposes.
4.5 Indemnification of
Purchasers. Subject to the provisions of this Section
4.5 and to the extent permitted by law, the Company will indemnify and hold each
Purchaser and its directors, officers, shareholders, members, partners,
employees and agents (and any other Persons with a functionally equivalent role
of a Person holding such titles notwithstanding a lack of such title or any
other title), each Person who controls such Purchaser (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, shareholders, agents, members, partners or employees (and
any other Persons with a functionally equivalent role of a Person holding such
titles notwithstanding a lack of such title or any other title) of such
controlling persons (each, a “Purchaser Party”)
harmless from any and all losses, liabilities, damages, costs and expenses,
including all judgments, amounts paid in settlements, court costs and reasonable
attorneys’ fees and costs of investigation that any such Purchaser Party may
suffer or incur due to a claim by a third party as a result of or relating to
any action instituted against a Purchaser in any capacity, or any of them or
their respective Affiliates, by any shareholder of the Company who is not an
Affiliate of such Purchaser, with respect to any of the transactions
contemplated by the Transaction Documents (unless such action is based upon a
breach of such Purchaser’s representations, warranties or covenants under the
Transaction Documents or any agreements or understandings such Purchaser may
have with any such shareholder or any violations by such Purchaser of state or
federal securities laws or any conduct by such Purchaser which constitutes
fraud, gross negligence, willful misconduct or malfeasance). If any
claim, action or proceeding shall be brought against any Purchaser Party in
respect of which indemnity may be sought pursuant to this Agreement, such
Purchaser Party shall promptly notify the Company in writing, and the Company
shall have the right to assume the defense thereof with counsel of its own
choosing reasonably acceptable to the Purchaser Party. Any Purchaser
Party shall have the right to employ separate counsel in any such claim, action
or proceeding and participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Purchaser Party except to the
extent that (i) the employment thereof has been specifically authorized by the
Company in writing, (ii) the Company has failed after a reasonable period of
time to assume such defense and to employ counsel or (iii) in such claim, action
or proceeding there is, in the reasonable opinion of counsel, a material
conflict on any material issue between the position of the Company and the
position of such Purchaser Party, in which case the Company shall be responsible
for the reasonable fees and expenses of no more than one such separate
counsel. The Company will not be liable to any Purchaser Party under
this Agreement (y) for any settlement by a Purchaser Party effected without the
Company’s prior written consent, which shall not be unreasonably withheld or
delayed; or (z) to the extent, but only to the extent, that a loss, claim,
damage or liability is attributable to any Purchaser Party’s breach of any of
the representations, warranties, covenants or agreements made by such Purchaser
Party in this Agreement or in the other Transaction Documents. The
Company will have the exclusive right to settle any claim, action or proceeding,
provided that the Company will not settle any such claim, action or proceeding
without the prior written consent of the Purchaser Party, which will not be
unreasonably withheld or delayed; provided, however, that such consent shall not
be required if the settlement includes a full and unconditional release
reasonably satisfactory to the Purchaser Party from all liability arising or
that may arise out of such claim, action or proceeding and does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any Purchaser Party.
17
4.6 Reservation of Common
Shares. As of the date hereof, the Company has reserved and the Company
shall continue to reserve and keep available at all times, free of preemptive
rights, a sufficient number of Common Shares for the purpose of enabling the
Company to issue Common Shares pursuant to this Agreement and Warrant Shares
pursuant to any exercise of the Warrants.
4.7 Listing of Common
Shares. The Company hereby agrees to use commercially reasonable best
efforts to maintain the listing or quotation of the Common Shares on the Trading
Market, and the Company shall promptly apply to list or quote all of the Common
Shares and Warrant Shares on such Trading Market and promptly secure the listing
of all of the Common Shares and Warrant Shares on such Trading
Market. The Company further agrees, if the Company applies to have
the Common Shares traded on any other trading market, it will then include in
such application all of the Common Shares and Warrant Shares, and will take such
other action as is necessary to cause all of the Common Shares and Warrant
Shares to be listed or quoted on such other trading market as promptly as
possible. The Company will use its reasonable best efforts to
continue the listing and trading of its Common Share on a trading market and
will comply in all material respects with the Company’s reporting, filing and
other obligations under the bylaws or rules of the trading market.
4.8 Subsequent Equity
Sales.
(a) From
the date hereof until 15 days after the Closing Date, neither the Company nor
any Subsidiary shall issue, enter into any agreement to issue or announce the
issuance or proposed issuance of any Common Shares or Common Share Equivalents.
From the date that is 15 days after the Closing Date until the date that is 30
days after the Closing Date, other than pursuant to an “At-the-Market” offering
registered pursuant to the Registration Statement, the Company shall not issue,
enter into any agreement to issue or announce the issuance or proposed issuance
of any Common Shares or Common Share Equivalents at an effective price (other
than underwriting or placement agent discounts) less than the Per Share Purchase
Price.
18
(b) Notwithstanding
the foregoing, this Section 4.8 shall not apply in respect of an Exempt
Issuance.
4.9 RESERVED.
4.10 RESERVED.
4.11 Equal Treatment of
Purchasers. No consideration (including any modification of
any Transaction Document) shall be offered or paid to any Person to amend or
consent to a waiver or modification of any provision of any of the Transaction
Documents unless the same consideration is also offered to all of the parties to
the Transaction Documents. For clarification purposes, this provision
constitutes a separate right granted to each Purchaser by the Company and
negotiated separately by each Purchaser, and is intended for the Company to
treat the Purchasers as a class and shall not in any way be construed as the
Purchasers acting in concert or as a group with respect to the purchase,
disposition or voting of Securities or otherwise.
4.12 Certain Transactions and
Confidentiality. Each Purchaser, severally and not jointly with the other
Purchasers, covenants that neither it nor any Affiliate acting on its behalf or
pursuant to any understanding with it will execute any purchases or sales,
including Short Sales of any of the Company’s securities during the period
commencing with the execution of this Agreement and ending at such time that the
transactions contemplated by this Agreement are first publicly announced
pursuant to the initial press release as described in Section 4.2 of this
Agreement. Each Purchaser, severally and not jointly with the other
Purchasers, covenants that until such time as the transactions contemplated by
this Agreement are publicly disclosed by the Company pursuant to the initial
press release as described in such Section 4.2, such Purchaser will maintain the
confidentiality of the existence and terms of this transaction and the
information included in the Disclosure Schedules. Notwithstanding the
foregoing and notwithstanding anything contained in this Agreement to the
contrary, the Company expressly acknowledges and agrees that (i) no Purchaser
makes any representation, warranty or covenant hereby that it will not engage in
effecting transactions in any securities of the Company after the time that the
transactions contemplated by this Agreement are first publicly announced
pursuant to the initial press release as described in Section 4.2 of this
Agreement, (ii) no Purchaser shall be restricted or prohibited from effecting
any transactions in any securities of the Company in accordance with applicable
securities laws from and after the time that the transactions contemplated by
this Agreement are first publicly announced pursuant to the initial press
release as described in such Section 4.2 and (iii) no Purchaser shall have any
duty of confidentiality to the Company or its Subsidiaries after the issuance of
the initial press release as described in such Section 4.2.
Notwithstanding the foregoing, in the case of a Purchaser that is a
multi-managed investment vehicle whereby separate portfolio managers manage
separate portions of such Purchaser’s assets and the portfolio managers have no
direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the covenant set forth above
shall only apply with respect to the portion of assets managed by the portfolio
manager that made the investment decision to purchase the Securities covered by
this Agreement.
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4.13 Delivery of Warrants After
Closing. The Company shall deliver, or cause to be delivered,
the respective Warrant certificates purchased by each Purchaser to such
Purchaser within three Trading Days of the Closing Date.
4.14 Cooperation. The
Company and each of the Purchasers shall reasonably cooperate and use their
respective commercially reasonable efforts to provide any information reasonably
requested by the other parties hereto with respect to such filings and other
disclosures as may be necessary in connection with the transactions contemplated
hereby.
ARTICLE
V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by (i) any Purchaser, as to such Purchaser’s
obligations hereunder only and without any effect whatsoever on the obligations
between the Company and the other Purchasers, or (ii) by the Company, in each
case, by written notice to the other parties, if the Closing has not been
consummated on or before December 10, 2010; provided, however, that no such
termination will affect the right of any party to xxx for any breach by the
other party (or parties), for which purpose the provisions of Section 4.5 shall
remain in effect in accordance with the provisions and limitations
thereof.
5.2 Fees and
Expenses. Except as expressly set forth in the Transaction
Documents to the contrary, each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of this Agreement. The Company shall pay all
Transfer Agent fees, stamp taxes and other taxes and duties levied in connection
with the delivery of any Securities to the Purchasers.
5.3 Entire
Agreement. The Transaction Documents, together with the
exhibits and schedules thereto, the Prospectus and the Prospectus Supplement,
contain the entire understanding of the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, oral or
written, with respect to such matters, which the parties acknowledge have been
merged into such documents, exhibits and schedules.
5.4 Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of: (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth on
the signature pages attached hereto prior to 5:30 p.m. (New York City time) on a
Business Day, (b) the next Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number set
forth on the signature pages attached hereto on a day that is not a Business Day
or later than 5:30 p.m. (New York City time) on any Business Day, (c) the second
(2nd)
Business Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service or (d) upon actual receipt by the party to
whom such notice is required to be given. The address for such
notices and communications shall be as set forth on the signature pages attached
hereto.
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5.5 Amendments;
Waivers. No provision of this Agreement may be waived,
modified, supplemented or amended except in a written instrument signed, in the
case of an amendment, by the Company and, prior to the Closing, the Purchasers
holding at least a majority in interest of the Shares then beneficially owned by
the Purchasers (which amendment shall be binding on all Purchasers) or, in the
case of a waiver or an amendment following the Closing, by the party against
whom enforcement of any such waived provision is sought or to be bound by such
amendment. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of any party to exercise any right hereunder in any manner impair the
exercise of any such right.
5.6 Headings. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
5.7 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of each Purchaser (other
than by merger, consolidation or sale of all or substantially all of the
Company’s assets). Any Purchaser may assign any or all of its rights
under this Agreement to any Person to whom such Purchaser assigns or transfers
any Securities, provided that such transferee agrees in writing to be bound,
with respect to the transferred Securities, by the provisions of the Transaction
Documents that apply to the “Purchasers.”
5.8 No Third-Party
Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person, except as otherwise set forth in Section 4.5 of this
Agreement.
5.9 Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of law
thereof. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any other manner permitted by law. If
any party shall commence an action or proceeding to enforce any provisions of
the Transaction Documents, then, in addition to the obligations of the Company
under Section 4.5 of this Agreement, the prevailing party in such action or
proceeding shall be reimbursed by the other party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
5.10 Survival. The
representations and warranties contained herein shall expire on the date that is
the 12-month anniversary of the Closing Date.
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5.11 Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party(ies), it being understood that all parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
5.12 Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission and Withdrawal
Right. Notwithstanding anything to the contrary contained in
(and without limiting any similar provisions of) any of the other Transaction
Documents, whenever any Purchaser exercises a right, election, demand or option
under a Transaction Document and the Company does not timely perform its related
obligations within the periods therein provided, then such Purchaser may rescind
or withdraw, in its sole discretion from time to time upon written notice to the
Company within two Business Days of the Company’s failure to perform, any
relevant notice, demand or election in whole or in part without prejudice to its
future actions and rights; provided, however, that in the
case of a rescission of an exercise of a Warrant, the applicable Purchaser shall
be required to return any Common Shares subject to any such rescinded exercise
notice concurrently with the return to such Purchaser of the aggregate exercise
price paid to the Company for such Common Shares and the restoration of such
Purchaser’s right to acquire such Common Shares pursuant to such Purchaser’s
Warrant (including, issuance of a replacement warrant certificate evidencing
such restored right).
5.14 Replacement of
Securities. If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
thereof (in the case of mutilation), or in lieu of and substitution therefor, a
new certificate or instrument, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and customary and
reasonable indemnity or security, if requested. The applicant for a
new certificate or instrument under such circumstances shall also pay any
reasonable third-party costs (including customary indemnity) associated with the
issuance of such replacement Securities.
5.15 Remedies. In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, each of the Purchasers and the Company will
be entitled to seek specific performance under the Transaction
Documents. The parties agree that monetary damages may not be
adequate compensation for any loss incurred by reason of any breach of
obligations contained in the Transaction Documents and hereby agree to waive and
not to assert in any action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
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5.16 Payment Set
Aside. To the extent that the Company makes a payment or
payments to any Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or payments or the
proceeds of such enforcement or exercise or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, recovered
from, disgorged by or are required to be refunded, repaid or otherwise restored
to the Company, a trustee, receiver or any other person under any law
(including, without limitation, any bankruptcy law, state or federal law, common
law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
5.17 Independent Nature of
Purchasers’ Obligations and Rights. The obligations of each
Purchaser under any Transaction Document are several and not joint with the
obligations of any other Purchaser, and no Purchaser shall be responsible in any
way for the performance or non-performance of the obligations of any other
Purchaser under any Transaction Document. Nothing contained herein or
in any other Transaction Document, and no action taken by any Purchaser pursuant
thereto, shall be deemed to constitute the Purchasers as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the
Transaction Documents. Except as set forth in Section 5.5 of this
Agreement, each Purchaser shall be entitled to independently protect and enforce
its rights including, without limitation, the rights arising out of this
Agreement or out of the other Transaction Documents, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose. Each Purchaser has been represented by
its own separate legal counsel in its review and negotiation of the Transaction
Documents. For reasons of administrative convenience only, each
Purchaser and its respective counsel have chosen to communicate with the Company
through WS. WS does not represent any of the Purchasers and only
represents Xxxxxx & Xxxxxxx, LLC, the placement agent. The Company has
elected to provide all Purchasers with the same terms and Transaction Documents
for the convenience of the Company and not because it was required or requested
to do so by any of the Purchasers.
5.18 Saturdays, Sundays,
Holidays, etc. If the last or
appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such action may be
taken or such right may be exercised on the next succeeding Business
Day.
5.19 Construction. The
parties agree that each of them and/or their respective counsel has reviewed and
had an opportunity to revise the Transaction Documents and, therefore, the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of the Transaction Documents or any amendments hereto. In addition, each and
every reference to share prices and Common Shares in any Transaction Document
shall be subject to adjustment for reverse and forward stock splits, stock
dividends, stock combinations and other similar transactions of the Common
Shares that occur after the date of this Agreement.
23
5.20 WAIVER OF
JURY TRIAL. IN ANY
ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY
OTHER PARTY, EACH OF THE PARTIES KNOWINGLY AND INTENTIONALLY, TO THE GREATEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
24
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
PARK
NATIONAL CORPORATION
|
Address for Notice:
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||
00
Xxxxx Xxxxx Xxxxxx
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Xxxxxx,
Xxxx 00000
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By:
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Fax: (000)
000-0000
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Name:
|
Attention: Chief
Financial Officer
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||
Title:
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|||
With
a copy to (which shall not constitute notice):
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|||
Vorys,
Xxxxx, Xxxxxxx and Xxxxx LLP
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|||
00
Xxxx Xxx Xxxxxx
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|||
Xxxxxxxx,
Xxxx 00000
|
|||
Fax: (000)
000-0000
|
|||
Attention: Xxxxxxxxx
Xxxxxxx
Xxxxxx
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE
PAGES FOR PURCHASERS FOLLOW]
25
[PURCHASER
SIGNATURE PAGES TO PARK NATIONAL CORPORATION SECURITIES PURCHASE
AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of Purchaser:
|
|
Signature of Authorized
Signatory of Purchaser:
|
Name
of Authorized Signatory:
|
Title
of Authorized Signatory:
|
Email
Address of Authorized Signatory:
|
Facsimile
Number of Authorized Signatory:
|
Address
for Notice of Purchaser:
Address
for Delivery of certificated Securities for Purchaser (if not same as address
for notice):
Information
for Delivery of uncertificated Securities by DWAC:
Account
Number:
|
|
|
Account
Name:
|
|
|
DTC
Number:
|
|
Subscription
Amount: $_________________
Common
Shares: _________________
Warrant
Shares: __________________
Purchaser
elects the following beneficial ownership blocker in the Warrant: ___
4.99%/_____9.99%
Affiliated
with any other Purchaser? __
No ____Yes Please
identify:____________________
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
o Notwithstanding
anything contained in this Agreement to the contrary, by checking this box (i)
the obligations of the above-signed to purchase the Securities set forth in this
Agreement to be purchased from the Company by the above-signed, and the
obligations of the Company to sell such Securities to the above-signed, shall be
unconditional and all conditions to Closing shall be disregarded, (ii) the
Closing shall occur on the third (3rd)
Trading Day following the date of this Agreement and (iii) any condition to
Closing contemplated by this Agreement (but prior to being disregarded by clause
(i) above) that required delivery by the Company or the above-signed of any
agreement, instrument, certificate or the like or purchase price (as applicable)
shall no longer be a condition and shall instead be an unconditional obligation
of the Company or the above-signed (as applicable) to deliver such agreement,
instrument, certificate or the like or purchase price (as applicable) to such
other party on the Closing Date.
[SIGNATURE
PAGES CONTINUE]
26